Sunday, July 5, 2015

On April 1, 2011, the union filed a charge with the National Labor Relations Board (NLRB) alleging that the tribe’s no-solicitation policy violates sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act (NLRA). On March 26, 2012, the Administrative Judge (AJ) issued his decision and order finding that the NLRB had jurisdiction over the casino and tribe and that the tribe’s no-solicitation policy violated the NLRA.

The AJ determined that:

Restricting operations at a casino on reservation land does not interfere with the tribe’s right of self-governance.

The applicable treaties only provided for a general right of exclusion (of non-Indians) and did not bar application of an act of general applicability like the NLRA.

Nothing in the language of the NLRA or its legislative history shows a congressional intent to exclude Indians from its coverage.

The Saginaw Chippewa tribe appealed the AJ’s decision to the NLRB, which adopted the AJ’s decision and order. The tribe then appealed to the U.S. Court of Appeals for the Sixth Circuit.

The Sixth Circuit Decision

On July 1, 2015, the Sixth Circuit issued a lengthy opinion concluding that the NLRA applied to the casino and entered judgment enforcing the NLRB’s order and denying the tribe’s petition for review. The Court acknowledged that Indian tribes have inherent sovereignty and stated that a federal statute should have a clear congressional intent to encroach on that sovereignty to be applicable to the tribes. However, on June 9, 2015, a panel of the Sixth Circuit had issued an opinion that the NLRB had jurisdiction over the Little River Band of Ottawa Indians’ casino based on an analytical framework for generally applicable federal statutes established in a Ninth Circuit case. The Sixth Circuit panel reviewing the issues in the Soaring Eagle case disagreed with a portion of the Little River holding, stating, “If writing on a clean slate, we would conclude that the Tribe has an inherent sovereign right to control the terms of employment with nonmember employees at the Casino, a purely tribal enterprise located on trust land. The NLRA, a statute of general applicability containing no expression of congressional intent regarding tribes, should not apply to the Casino and should not render its no-solicitation policy void.” But this panel of the Sixth Circuit is bound by the holding in the Little River case, so it ultimately ruled that the NLRA applies to the Soaring Eagle Casino and the NLRB has jurisdiction over the dispute.